Yacknin Draft Arbit. Rpt. on Level 3 Communications' application for arbitration of interconnection agreement with Pacific Bell Telephone Company

XI. Out Of Exchange Traffic

SBC proposes an appendix to address the terms and conditions of Level 3's and SBC's exchange of telecommunications outside of SBC's incumbent local exchange areas, i.e., where SBC is not the incumbent carrier. I decline to arbitrate SBC's proposed Out of Exchange Appendix. As SBC cautions in its discussion on transit traffic, not every disagreement between carriers who are making an interconnection agreement is subject to arbitration under Section 252. To the contrary, the Commission's authority under Section 252 is limited to interconnection agreements between CLECs and ILECs. The proposed Out of Exchange Appendix by definition concerns Level 3's exchange of telecommunications with SBC as a CLEC, not an ILEC, and is therefore not subject to arbitration.

Assuming that SBC and Level 3 mean to waive jurisdictional objections and voluntarily submit to the Commission on this issue, I nevertheless decline to arbitrate the matter. While Section 252(e) directs state commissions to approve or reject negotiated agreements, this is not a negotiated agreement; it is a disputed issue. Level 3 opposes SBC's proposed language both generally and specifically.

In any event, I reject SBC's premise that its proposed Out of Exchange Appendix is necessary to make clear that its obligations as a CLEC are separate and apart from its obligations as an ILEC under Section 251(c). While the agreement purports to describe with specificity the terms and conditions of SBC's and Level 3's telecommunications exchange when SBC is a CLEC, it does not provide any clarity over whether the "SBC" in question is a CLEC or an ILEC. As SBC witness Chapman testified, merely asserting that the services being provided are by SBC in its capacity as a CLEC has not been enough to prevent a dispute with a carrier asserting that SBC is acting in its capacity as an ILEC and seeking equal access to those services.

For all these reasons, I reject SBC's proposed Out of Exchange Appendix. SBC and Level 3 are, of course, free to voluntarily negotiate an agreement for their exchange of traffic when SBC is acting as a CLEC.